🤯 ASTOUNDING HEIGHTS OF HYPOCRISY! — Garland Praises Rule Of Law, Equal Justice, & Immigrants While Running Biased, Unconstitutional, Dysfunctional, Backlogged Immigration “Courts” That Trample All Three! — There’s Not Much That’s “Fair” Or “Equal” In Garland’s “Star Chambers!”

Star Chamber Justice
A.G. Merrick Garlands gratitude to America for accepting his family doesn’t extend to those suffering injustice in his wholly owned “Immigration Courts” — still churning our “Trump-era” restrictionist nonsense and “managed” in a way that promotes maximum dysfunction and inefficiency!

https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-administers-oath-allegiance-and-delivers

Attorney General Merrick B. Garland Administers the Oath of Allegiance and Delivers Congratulatory Remarks at Ellis Island Ceremony in Celebration of Constitution Week and Citizenship Day

New York, NY ~ Saturday, September 17, 2022

Remarks as Delivered

It is my great honor to welcome you as the newest citizens of the United States of America. Congratulations!  Please be seated.

Just now, each of you took an oath of allegiance to the United States. In so doing, you took your place alongside generations who came before you, many through this very building, seeking protection, freedom, and opportunity.

This country – your country – wholeheartedly welcomes you.

I know that you have made sacrifices in order to be here today. You should be proud of all you have accomplished. I am proud of you.

You have made the decision to become Americans not only at an important time in our country’s history, but on an important day.

It was 235 years ago on this day, September 17, 1787, that 39 delegates to the Constitutional Convention representing 12 states signed their names to the Constitution of the United States.

Like you, those who signed the Constitution were relatively new Americans. In fact, America had only existed for 11 years at that point.

Like you, those Americans had great hopes for their own future – and for the future of their new country.

In the preamble of the Constitution, those Americans enumerated those hopes: to form a more perfect union; establish justice; ensure domestic tranquility; provide for the common defense; promote the general welfare …

And importantly – in their words – “to secure the Blessings of Liberty to ourselves and our Posterity.”

Like them, each of you has now made a commitment not only to this nation and your fellow Americans, but to the generations of Americans who will come after you.

In that commitment, you have given your posterity – and the posterity of all of us – a precious gift.

I know how valuable that gift is because it is the same one my grandparents gave my family and me.

I come from a family of immigrants who fled religious persecution early in the 20th Century and sought refuge here in the United States. Some of my family entered right here, at Ellis Island.

My grandmother was one of five children born in what is now Belarus. Three made it to the United States, including my grandmother who came through the Port of Baltimore.

Two did not make it. Those two were killed in the Holocaust.

If not for America, there is little doubt that the same would have happened to my grandmother.

But this country took her in. And under the protection of our laws, she was able to live without fear of persecution.

I am also married to the daughter of an immigrant who came through the Port of New York in 1938.

Shortly after Hitler’s army entered Austria that year, my wife’s mother escaped to the United States. Under the protection of our laws, she too, was able to live without fear of persecution.

That protection is what distinguishes America from so many other countries. The protection of law – the Rule of Law – is the foundation of our system of government.

The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.

The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.

The Rule of Law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.

Of course, we still have work to do to make a more perfect union. Although the Rule of Law has always been our guiding light, we have not always been faithful to it.

The Rule of Law is not assured. It is fragile. It demands constant effort and vigilance.

The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

The United States is no stranger to what our Founders called the risk of faction. Alexander Hamilton and James Madison wrote about it in the Federalist Papers. George Washington warned against it in his Farewell Address.

Overcoming the current polarization in our public life is, and will continue to be, a difficult task.

But we cannot overcome it by ignoring it. We must address the fractures in our society with honesty, with humility, and with respect for the Rule of Law.

This demands that we tolerate peaceful disagreement with one another on issues of politics and policy. It demands that we listen to each other, even when we disagree. And it demands that we reject violence and threats of violence that endanger each other and endanger our democracy.

We must not allow the fractures between us to fracture our democracy.

We are all in this together. We are all Americans.

On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.

That we will honor and defend our Constitution.

That we will recognize and respect the dignity of our fellow Americans.

That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.

That we will do what is right, even if that means doing what is difficult.

And that we will do these things not only for ourselves, but for the generations of Americans who will come after us.

I have often thought about what members of my family felt as they came through buildings like this. And I have often thought about what their decisions meant for my own life.

My family story is what motivated me to choose a career in public service. I wanted to repay my country for taking my family in when they had nowhere else to go. I wanted to repay the debt my family owes this country for our very lives.

My family members who immigrated here have now long since passed. I regret that I cannot express to them how grateful I am for the gift they gave me in choosing to come to this country.

So let me thank each of you.

Thank you for choosing America as your home. Thank you for the courage, dedication and work that has brought you here.

Thank you for all you will do to help our country live up to its highest ideals.

Thank you on behalf of a nation that is fortunate to call you as its citizens.

And thank you upon on behalf of the generations of Americans who will come after you. Thank you.

******************

The man lives in a “reality-free bubble” on the 5th Floor of DOJ. He must also “tune out” the many Circuit Court decisions lambasting the BIA’s sloppy decisions, anti-due-process “culture,” and wrong anti-immigrant legal rulings issued in his name. He seems incapable of understanding how the unfathomable mess he presides over at EOIR affects the health and welfare of those practicing before it!

I’m curious as to how denying access to counsel, denying reasonable continuances, failing to follow precedent, using improper “one judge” review, intentionally misconstruing “notice” statutes, and applying legally incorrect standards, all subjects of recent Circuit “blowbacks,” fit into Garland’s view of equal justice for immigrants in America. How does “Aimless Docket Reshuffling on steroids” fit in with his concept of due process and professional court administration?

Know a man not by his words, but by his deeds. In Garland’s case, it’s an ugly picture.

🇺🇸 Due Process Forever!

PWS

09-29-22

🤯🥵☠️TEFLON MERRICK? — AS CIRCUITS CONTINUE TO RIP GARLAND EOIR’S SYSTEMIC DENIALS OF DUE PROCESS, HIS GROSS MISMANAGEMENT OF EOIR IS CREATING SUICIDAL THOUGHTS AMONG THOSE TRYING TO “PRACTICE” BEFORE HIS EVER-DETERIORATING, DEADLY, “CLOWN SHOW” 🤡MASQUERADING AS A “COURT”

Alfred E. Neumann
Was Merrick Garland AWOL during required training on legal and judicial ethics? Judging from how he runs “America’s worst court system” — where due process, fundamental fairness, and best practices go to die — we have to assume that that he thinks he has “risen above” the need to comply with ethical requirements!
PHOTO: Wikipedia Commons

I can’t even keep up with the ludicrously bad EOIR decisions being “outed” by the Circuits and, worse yet, mindlessly (and probably unethically) defended by the DOJ’s OIL. Here’s just one afternoon’s “haul:” https://www.ca4.uscourts.gov/opinions/211163.U.pdf (4th Cir., failure to follow precedent, improper one-judge appellate decision); https://www.ca2.uscourts.gov/decisions/isysquery/d0d1a22c-4e59-4b4d-9439-92e57e7339ec/2/doc/20-3476_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/d0d1a22c-4e59-4b4d-9439-92e57e7339ec/2/hilite/ (2d Cir., improper denial of continuance, “Round Table” case); https://www2.ca3.uscourts.gov/opinarch/212259p.pdf (denying fair access to counsel, denial of continuance).

These are very graphic examples of Garland’s inexcusable failure to end the “haste makes waste, anything goes culture” @ EOIR — encouraged by Sessions and Barr but completely unaddressed by Garland! And, I guarantee this is just “the tip of the iceberg.” For every one of these outrageous errors caught by a Circuit, dozens are probably wrongfully denied relief and illegally ordered deported in Garland’s dysfunctional, due process denying, deportation assembly line!

But, beyond that, Garland’s failure to “clean house” at EOIR and hire qualified, expert, professional leaders, judges, and administrators is an ongoing national disgrace — one that is eating away the foundations of our justice system.

Here’s a “real life snapshot” from my “Morning Mailbox:”

I got 15 individual hearing notices in two days for October 2022. Right now the firm has 47 [Individual Hearings] in October for 4 attorneys to handle. A lot of the hearings we never even got notice for, we just randomly have been checking the portal and that’s how we are finding out. Once we do find out we are always about a month or less away from the hearing date. We are going to try to file motions to continue but who really knows what they are going to do about it. Also, I had an [Individual Hearing] with Judge _________ the other day, and he said that Respondents’ attorneys are having a hard time. He said he had a master that he had to schedule for an [Individual Hearing], and the Respondent’s counsel told him if he scheduled her Individual Hearing within the next 6 months she was going to commit suicide. He seemed really concerned for the attorneys. Hopefully this calms down, because the hearings are piling on and quite honestly no one has the manpower to do all of the [Individual Hearings] in especially such short notice.

This is insane, inexcusable, and totally uncalled for! Aimless Docket Reshuffling gone wild! 

In what real “court” system is a judge “required” to schedule a hearing that he knows is beyond the ability of the lawyer to handle at the appointed time. That’s an ethical violation! Who is behind this mess? If the “buck stops at the top,” why isn’t Garland under under investigation for “operating a system” that clearly violates judicial and professional ethics?

Q: What happens when comedy 🎭morphs into tragedy☠️?

A: Merrick Garland’s EOIR

🇺🇸Due Process Forever!

PWS

09-16-22

 

⚖️THE GIBSON REPORT — 09-96-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — CAIR Seeks Examples Of “IJs using [boilerplate] and engaging in little/no actual legal analysis in a particular case.” — NIJC Looking For “PD Stories” — Many Helpful Practice Advisories & Alerts!

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

pastedGraphic.png

 

Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • ◦NEWS
  • ◦LITIGATION & AGENCY UPDATES
  • ◦RESOURCES
  • ◦EVENTS

 

NEWS

 

Biden Administration Has Admitted One Million Migrants to Await Hearings

NYT: Under a pandemic-driven public health rule, migrants have been turned away at the U.S. border 1.7 million times since Mr. Biden took office, a figure that includes some people who have attempted to cross multiple times. But the United States has allowed others to stay temporarily for a range of reasons, including because Mexico or their own countries will not take them back. Nearly 300,000 of those who have been allowed in — including many heads of families — have been outfitted with tracking devices so that Immigration and Customs Enforcement can keep tabs on their whereabouts while they await their day in court. See also ‘Tale of two borders’: Mexicans not seen at busy crossings.

 

‘Human crisis’: Chicago seeks help as Texas buses over migrants

AlJazeera: Chicago Mayor Lori Lightfoot recently told reporters that about 125 migrants have arrived in the city on board buses from Texas, including 50 people who arrived on Sunday alone, most of them families. See also Texas spends more than $12 million to bus migrants to Washington, DC, and New York; Chicago welcomes immigrants bused out of Texas with open arms.

 

No longer young, ‘dreamers’ uneasily watch a legal challenge

WaPo: The oldest recipients were in their early 30s when DACA began and are in their early 40s today. At the same time, fewer people turning 16 can meet a requirement to have been in the United States continuously since June 2007.

 

Dozens of migrant children reported missing in Houston, raising alarms

Reuters: The agency found that since late last year, 57 unaccompanied migrant kids had been reported missing in Houston, the HHS official, and two additional sources familiar with the situation, said. Included in the count were nine kids who ran away from HHS shelters in the Houston area, the official said.

 

Venezuela’s refugee crisis similar to Ukraine’s in scale, but not aid

WaPo:   The exodus from Venezuela has grown to the point that its refugee numbers are now close to those displaced by the conflict in Ukraine — but the European crisis has drawn disproportionately more financial support, according to an advocacy group. See also Ecuador begins regularization process for thousands of Venezuelan migrants.

 

California may be 1st to ban solo confinement for immigrants

CA: California would be the first U.S. state to ban solitary confinement in private civil detention centers used for immigrants who are under threat of deportation, under a bill that advanced Tuesday.

 

Feds Say Biz Lined Pockets With Migrant Kids’ Shelter Funds

Law 360: Federal prosecutors accused a Texas contractor of misappropriating hundreds of thousands of dollars worth of funding from the U.S. Department of Health and Human Services that was intended to be used for housing unaccompanied migrant children.

 

Afghan Resettlement Efforts Will Now Prioritize US Family Ties

Law 360: The Biden administration will focus on bringing over Afghans who have U.S. families in the next stage of its effort to relocate those fearing for their lives under the Taliban’s rule, a State Department spokesperson said Thursday.

 

LITIGATION & AGENCY UPDATES

 

American Samoa Gov’t Argues Against Birthright Citizenship

Law 360: The American Samoa government told the U.S. Supreme Court Monday that imposing birthright citizenship on American Samoans would deprive them of the right to decide their status, going against American Samoa-born individuals who earlier appealed to the high court.

 

1st Circ. Calls Removal Statute ‘Hard-Hearted’ In Affirming BIA

Law 360: The First Circuit was bound Wednesday to stand by an immigration appeals board decision that ordered a Guatemalan man removed from the country despite the hardship it would cause his children, saying the call was in line with the “hard-hearted” and “stringent statutory requirement.”

 

1st Circ. Says Fuzzy Memory Of Assault Doesn’t Bar Asylum

Law 360: The Board of Immigration Appeals was wrong when it refused to consider a psychological report explaining why an El Salvadoran teen seeking asylum had trouble remembering the details of sexual assaults that occurred when she was a child, a split First Circuit has ruled.

 

CA3 On Credibility, CAT: Njoka V. Garland (unpub)

LexisNexis: [U]nder the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection…The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.

 

CA9 On INTERPOL Red Notice, CAT: Gonzalez-Castillo V. Garland

LexisNexis: This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause.

 

Another CA5 Pereira / Niz-Chavez Remand: Parada V. Garland – Now Published!

LexisNexis: [T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.”

 

CA9: BIA Must Consider New Evidence For Immigration Credibility

Law 360: The Ninth Circuit revived a Sikh man’s second attempt at obtaining asylum in the United States, finding that the Board of Immigration Appeals should have considered new information he presented in his later bid about the dangers of living as a Sikh in India.

 

9th Circ. Rules Ariz. Drug Convictions Trigger Deportations

Law 360: A Ninth Circuit panel on Monday ruled that Arizona’s drug possession laws can support federal immigration removal orders despite banning a broader list of substances than the federal drug schedule because the Grand Canyon State requires juries to determine the specific drug type involved in each conviction.

 

Calif. Judge Imposes New Rules For Migrant Youth Placement

Law 360: The U.S. Department of Health and Human Services’ Office of Refugee Resettlement must notify young detained migrants and their counsel when it decides against releasing them to their parents or relatives and provide reasons for withholding release, a California federal judge has ordered.

 

ICE Inks $4.8M Deal With Migrant Teens In Detention Litigation

Law 360: U.S. Immigration and Custom Enforcement has agreed to pay $4.8 million to resolve a class action claiming the government routinely failed to consider safer options before transferring teens to adult detention facilities after they turned 18, according to a proposed settlement filed Thursday in D.C. federal court.

 

Judge Recommends Immigrant Class Cert. In NY Detainer Suit

Law 360: Immigrants suing New York’s Suffolk County and its sheriff’s office over their practice of holding people past their release date by request of U.S. Immigration and Customs Enforcement have won over a federal judge, who recommended their proposed class be certified.

 

Iranian Diversity Visa Applicants Say They Were Skipped Over

Law 360: Two California chapters of a national Muslim civil liberties group and 159 Iranian diversity visa applicants have sued the Biden administration in federal court, claiming they have been “skipped over” and “unreasonably delayed” in the processing of their applications “for no explicable reason.”

 

USCIS Extends and Expands Employment Authorization for Individuals Covered by DED for Liberia

USCIS: U.S. Citizenship and Immigration Services (USCIS) today published a Federal Register notice for the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Liberians and explaining how eligible Liberians may apply for Employment Authorization Documents (EADs).

 

USCIS Resumes Cuban Family Reunification Parole Program Operations

USCIS: U.S. Citizenship and Immigration Services (USCIS) is resuming operations under the Cuban Family Reunification Parole (CFRP) program, beginning with pending CFRP program applications.

 

USCIS Updates Guidance Related to Religious Workers

USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant and nonimmigrant religious workers.

 

EOIR to Open Sterling Immigration Court

EOIR: The Executive Office for Immigration Review (EOIR) today announced it will open a new immigration court in Sterling, Virginia, on Oct. 3, 2022. The Sterling Immigration Court will include 19 immigration judges. It will be the second immigration court to open in the National Capital Region this calendar year.

 

Call for Examples: IJ Use of Boilerplate

CAIR: Peter Alfredson from CAIR Coalition’s Immigration Impact Lab is seeking examples of problems related to how IJs are using boilerplate addenda/statements of law in oral decisions. Please contact him at peter@caircoalition.org with any specific issues you’ve experienced with the addenda, including, but not limited to: IJs referring to the addenda but never actually providing them; addenda misrepresenting the law in a prejudicial way; and IJs using the addenda and engaging in little/no actual legal analysis in a particular case.

 

Call for Examples: PD stories (US v Texas)

NIJC: If you have examples of prosecutorial discretion you are willing to share (anonymously to your client if you wish), please fill out this form: Amicus Stories. Also: if you are a nonprofit and would be interested in signing on as an amici, please fill out this form: Joining Amici. In particular, we are thinking of cases that fit into the following categories: Grants or Denials under the Mayorkas Memo of PD for the purpose of seeking some non-EOIR benefit, such as: Eligibility for U visa, Eligibility for adjustment of status, Eligibility for SIJS. Grants or Denials under the Mayorkas Memo of PD based on particular humanitarian or unique considerations: Military service (self or family), Undercover or confidential informant situation, Family separation. DACA / DREAMers, MPP, Old convictions / rehabilitation. Stories (even if they predate the Mayorkas Memo) involving: Circumstances where individuals who would have been subject to 236(c) were not placed in removal proceedings, and the person was able to pursue relief with USCIS because no proceedings were ever initiated. Circumstances where individuals who could have been subject to reinstatement of a prior removal order did not have that order reinstated and were able to do things like pursue a U or T visa before USCIS, without being detained or placed in removal proceedings.

 

RESOURCES

 

 

EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

*******************

Thanks, Elizabeth!

Lack of analysis, prejudged cases, overt anti-immigrant bias, and absence of “applied” immigration, human rights, and due process expertise is an endemic problem at EOIR. Using canned law (some of it flat out wrong or at least questionable) in “addenda” appears to be another “built to fail,” due process denying, haste make waste “gimmick.”

Lousy analysis and basic mistakes appear in Federal Court rebukes of EOIR highlighted here, on LexisNexis, on ImmigrationProf  blog, and other resources on an almost daily basis. And, we by no means are able to catalogue all of the abject failures being cranked out by Garland’s EOIR — many of which would embarrass an L-1! Why not get 1) better judges, 2) a better BIA, and 3) better training?

Garland has been “nibbling around the edges,” at best. A few enlightened appointments of well-qualified “practical scholars” to newly created judgeships in a failed system of some 600 judges nationwide with a fatally flawed “Trump holdover” appellate body, the BIA, won’t cut it.

EOIR needs new, exceptionally well-qualified, dynamic, due process oriented expert leadership and a new BIA that will begin solving the problems rather than aggravating them and shuffling them on to the Circuits. Hopefully, the CAIR effort will lead to “dialing up the pressure” on Garland and his lieutenants to “get their collective heads out of the clouds and kick some tail at what (despite the efforts of Article III right wing hacks like Judge Aileen “Loose” Cannon to claim the title) remains “America’s worst court system” — where due process, fundamental fairness, legal scholarship, and best practices “go to die.” 🪦

I don’t dispute that America’s judicial system is failing from top to bottom. But, unlike the  Article IIIIs, where there are long-term structural issues with constitutional roots that make “quick fixes” impossible, EOIR is “wholly owned and operated” by the Executive. 

Systemic institutional reforms like replacement or reassignment of unqualified judicial and administrative personnel could, and should, have been a top priority for the Biden Administration. But, instead the tone deaf “it’s only immigration not a real priority” approach by Garland has allowed life-threatening legal malfeasance at EOIR to fester, spread, and undermine confidence in the ability of our democracy to survive.

News flash for Garland: EOIR is where the “rubber meets the road” for American justice. You continue to ignore and downplay the need for bold decisive corrective action at your own peril — and our nation’s!

🇺🇸Due Process Forever!

PWS

09-07-22

⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Raed Gonzalez ESQ
Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

https://www.ca5.uscourts.gov/opinions/unpub/19/19-60425.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/another-ca5-pereira-niz-chavez-remand-parada-v-garland#

“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. …  [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”

[Yet another victory for Superlitigator Raed Gonzalez!  Who else could persuade CA5 to agree with CA9, and get an award of costs?]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

*******************

Male Superhero
Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America!
PHOTO: Creative Commons

Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit! 

Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!

Rotten Tomatoes
Rotten Tomatoes
Garland & his lieutenants deserve appropriate recognition for failing to bring long-overdue reforms to America’s most dysfunctional “parody of a court system” — EOIR!
PHOTO: Creative Commmons

Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases?  I like the fee award but I doubt that it has much impact on their behavior.”

Professor Richard Boswell
Professor Richard Boswell
UC Hastings Law
PHOTO: LinkedIn
Professor Boswell asks the right question. So far, “Team Garland” has no answers!

I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!

If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary. 

The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!

Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?

The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination. 

How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?

By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!

One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!

Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!

It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!

Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights,  and racial justice at DOJ! 

I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!

It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge/AG Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

09-03-22

🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-credibility-cat-njoka-v-garland

CA3 on Credibility, CAT: Njoka v. Garland

Njoka v. Garland (unpub.)

“[W]e conclude that the Board erred in affirming the IJ’s denial of CAT protection. The Board’s sole justification for that affirmance was the adverse credibility finding. The Board suggested that, under Fifth Circuit precedent, an adverse credibility finding defeats a claim for CAT protection. See Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019). But under the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection.1 Ibarra Chevez v. Garland, 31 F.4th 279, 288 (4th Cir. 2022); see Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (“Because there is no subjective component for granting relief under the CAT, the adverse credibility determination on which the IJ relied to deny [the petitioner’s] asylum claim would not necessarily defeat her CAT claim.”). The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.2 See Camara, 378 F.3d at 371-72. Because the Board did not fulfill that duty, we will grant the petition for review in part and remand for the Board to do so.”

[Hats off to Rajan O. Dhungana!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-interpol-red-notice-cat-gonzalez-castillo-v-garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

Gonzalez-Castillo v. Garland

“Petitioner Oscar Gonzalez-Castillo was found to be ineligible for withholding of removal by an Immigration Judge (“IJ”) because there were “serious reasons to believe that [he] committed a serious nonpolitical crime” in his home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii). The government only presented one piece of evidence supporting application of the serious nonpolitical crime bar, however. It was an INTERPOL Red Notice, described at greater length below. The Red Notice accused Gonzalez-Castillo of committing “strikes” on behalf of the gang MS13, allegedly committed on a date when Gonzalez-Castillo was in the United States rather than in El Salvador, based on the date of entry found by the IJ. We conclude that substantial evidence does not support the IJ’s finding, affirmed by the Board of Immigration Appeals (“BIA”), that Gonzalez-Castillo is ineligible for withholding of removal based on the serious nonpolitical crime bar. This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause. The allocation of the burden of proof in immigration proceedings does not change this outcome. We accordingly grant Gonzalez-Castillo’s petition for review in part and remand to the agency to consider whether Gonzalez-Castillo is eligible for withholding of removal. We also grant the petition as to his claim under the Convention Against Torture (“CAT”), because the record reflects that the agency failed to consider all of Gonzalez-Castillo’s testimony and statements about the harms he suffered in El Salvador at the hands of state actors, so we remand for more complete consideration of the CAT claim. We are not persuaded, however, by arguments in the petition for review challenging the evaluation of evidence that was discussed or by the argument that that the IJ failed sufficiently to develop the record. We dismiss the petition in part as to his claim for asylum, because the arguments Gonzalez-Castillo raises on appeal with respect to the one-year bar for asylum relief were not exhausted before the BIA.”

[Hats off to Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole Conrad and Joya Manjur, Certified Law Students; University of California, Berkeley School of Law, Berkeley, California; for Petitioner, and John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amicus Curiae Fair Trials Americas!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-credibility-changed-conditions-sikhs-in-india—singh-v-garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

Singh v. Garland

“We have held that the Board of Immigration Appeals (BIA) may rely on a prior adverse credibility determination to deny a motion to reopen if that earlier finding factually undercuts the petitioner’s new argument. Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does not mean the BIA can deny a motion to reopen just because that motion touches upon the same claim or subject matter as the previous adverse credibility finding. Here, Rupinder Singh submitted new evidence about religious persecution independent of the prior adverse finding. The BIA thus erred in holding that the earlier adverse credibility finding barred Singh’s motion to reopen. The BIA also erroneously concluded that Singh failed to show that the conditions for Sikhs in India changed qualitatively since his last hearing. Clear evidence shows the contrary. We thus grant the petition and remand.”

[Hats off to Garish Sarin!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-abuse-of-discretion-rivera-medrano-v-garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

Rivera-Medrano v. Garland

“Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge (“IJ”) based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings. … The BIA’s oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation.”

[Hats off to SangYeob Kim, Gilles Bissonnette and Henry Klementowicz!]

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President Biden is correct that Trump and his MAGA GOP are the biggest threat to American democracy. But, “Dred Scottification,” systemic denial of due process, and racial injustice still running rampant in Immigration “Courts” under a Democratic Administration is right up there as an existential threat!

Additionally, I’ve been getting reports this week from practitioners in various locations that EOIR is embarking on yet another mindless, ill-informed round of “Aimless Docket Reshuffling” — guaranteed to increase backlogs, decrease effective representation, and spew out more unprofessional and unjust results. 

Once more, this inane initiative appears to have been undertaken with neither advance input from, nor sufficient notice to, those most affected — respondents and their attorneys! Same old, same old! This must stop!

Enough, already! Why aren’t all the “movers and shakers” of American law lined up in front of Garland’s Office demanding that he end the assault on our Constitution, common sense, good government, and human decency that unfolds every day in the disgracefully dysfunctional parody of a “court” system that is his sole responsibility!

The bar and NGO communities have to fight Garland’s assault on due process and good government with every available tool!

🇺🇸Due Process Forever!

PWS

00-02-22

THE GIBSON REPORT — 08-29-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

PRACTICE UPDATES

EOIR Practice Manual & BIA Practice Manual

EOIR: In response to comments from the public, EOIR is once again making the Board and Immigration Court Practice Manuals available as downloadable PDF documents. [Also, the BIA Practice Manual now lists the BIA brief page limit at 50 pages.]

Penn State Law: DACA Final Rule: What You Need to Know

NEWS

Biden administration moves to make DACA harder to challenge in court

NPR: NPR’s A Martinez talks to Homeland Security Secretary Alejandro Mayorkas about the Deferred Action for Childhood Arrivals (DACA) program which is now in the federal government’s code of regulations.

She’s at Brown. Her Heart’s Still in Kabul.

NYT: In their first year at U.S. universities, women who escaped the Taliban are struggling to adjust — and to reckon with what they left behind. See also One year on, Afghan refugees find shelter but little security in US.

Visa rules in Mexico don’t stop Venezuelans headed to US

AP: In 2021, when Venezuelans could still fly to Cancun or Mexico City as tourists, only 3,000 of them crossed the Darien Gap — a literal gap in the Pan-American Highway that stretches along 60 miles (97 kilometers) of mountains, rainforest and rivers. So far this year, there have been 45,000, according to Panama’s National Immigration Service.

A ‘radical shift’ at the border is making things tougher for Biden

CNN: Back in 2007, the number of migrants in this “other” category was negligible. But since then, it’s grown dramatically — 11,000% — with the sharpest increase in just the past two years.

New Mexico won’t deny law licenses over immigration status

AP: Announced Monday, the rule change from the New Mexico Supreme Court is scheduled to take effect Oct. 1. Several states already have provisions that disregard residency or immigration status in licensure decisions.

Unaccompanied Immigrant Children Who Are Pregnant And In US Custody Are Being Moved Across State Lines To Access Abortion Services

Buzzfeed: ORR is working on an updated policy, and advocates have heard that the agency was already transferring minors to other states if they need access to abortion services, Amiri said. But nothing official has been released.

LITIGATION & AGENCY UPDATES

1st Circ. Says BIA Didn’t Explain Seriousness Of Weed Crime

Law360: The First Circuit has told the Board of Immigration Appeals to have another look at a Haitian man’s asylum request, saying the board did not adequately explain why his marijuana offenses made him ineligible for asylum.

3rd Circ. Says Pa. Stalking Conviction Isn’t Deportable

Law360: The Third Circuit ruled that U.S. Department of Homeland Security couldn’t deport an Indian immigrant over a stalking conviction, saying the man was convicted under an overbroad Pennsylvania law that criminalized misconduct that doesn’t warrant deportation.

CA4: IJ Milo Bryant Violated Respondent’s Due Process Rights; Illegal Reentry Indictment Dismissed

LexisNexis: During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing…Ultimately, we agree with Fernandez Sanchez that there is a reasonable probability that, but for the denial of his appeal rights, he would not have been deported.

Allies Tell DC Circ. Green Card Delays Threaten Safety

Law360: Afghan and Iraqi allies suing the federal government over delays with their green card applications told the D.C. Circuit that a lower court’s refusal to impose a deadline to address the delays endangers their lives given the deteriorating security conditions in their homelands.

Blogger Cops To Assisting Attys’ Alleged Immigration Scam

Law360: A New York City blogger told a Manhattan federal judge Wednesday that he assisted two lawyers in creating fraudulent asylum applications to submit to U.S. immigration authorities, pleading guilty to a conspiracy count.

GEO Group Hit With Investor Suit Over Forced Labor Claims

Law360: An investor of The GEO Group has lodged a derivative suit against higher-ups of the private prison operator, saying their disclosures about GEO’s financial prospects didn’t match internal financial concerns stemming from lawsuits alleging forced labor by immigrant detainees.

DHS Issues Regulation to Preserve and Fortify DACA

DHS: Homeland Security Secretary Alejandro N. Mayorkas today announced that the Department has issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.

EOIR 60-Day Notice and Request for Comments on Proposed Revisions to Forms EOIR-42A and EOIR-42B

AILA: EOIR 60-day notice and request for comments on proposed revisions to Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, and Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.

DOJ 60-Day Notice and Request for Comments on Proposed Revisions to EOIR-44

AILA: DOJ 60-day notice and request for comments on proposed revisions to Form EOIR-44, Immigration Practitioner Complaint Form. Comments are due 10/24/22.

RESOURCES

EVENTS

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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Thanks, Elizabeth!

As usual, this is a good rundown of some of the continuing problems that Garland’s EOIR is having in the Federal Courts, including a few items previously reported on Courtside.

🇺🇸 Due Process Forever!

PWS

08-30-22

🏴‍☠️CRISTIAN FARIAS @ VANITY FAIR: WHAT HAPPENS WHEN A MAJORITY OF A DEMOCRACY’S TOP JUDGES NO LONGER BELIEVE IN DEMOCRACY & ARE UNWILLING TO DEFEND IT?☠️

Cristian Farias
Cristian Farias
Writer 
Vanity Fair

https://www.vanityfair.com/news/2022/08/post-roe-scotus-is-on-a-collision-course-with-democracy

After destabilizing the nation over abortion, and moving further right on guns, climate, and religion, the conservative justices’ sights are on affirmative action, voting rights, and a fringe legal theory that could empower Trump-friendly state legislatures for future elections.

BY CRISTIAN FARIAS

AUGUST 25, 2022

On the eve of his retirement, the nation’s first Black justice and ­constitutional giant, Thurgood Marshall, took a moment to denounce the Supreme Court of the United States over its “radical” path of abandoning past decisions for no other reason than the court’s membership had changed. Owing to these shifts in personnel, Marshall charged, now “scores of established constitutional liberties” hung in the balance, the powerless were left defenseless, and the court’s own authority and legitimacy were diminished. “Power, not reason, is the new currency of this Court’s decisionmaking,” Marshall warned in 1991, in what turned out to be his final dissenting opinion.

The dissenting justices in Dobbs v. Jackson Women’s Health Organization, the watershed case that discarded nearly 50 years of American jurisprudence protecting a woman’s right to terminate a pregnancy, felt the need to quote from Marshall’s decades-old warning because power, indeed, is the only sensible explanation for the Supreme Court’s present course. The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the high court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society. Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could—and had the numbers to do so. “Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in their anguished Dobbs dissent. “All that has changed is this Court.”

As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood. Not satisfied with the erasure of just one constitutional right, Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. That future begins now. These actions and other signals make abundantly clear what Marshall foresaw: The Supreme Court is on a collision course with democracy itself. Dobbs merely sets the stage.

Every new justice creates a new court, the maxim goes. Yet for much of their time on the bench, Justice ­Samuel Alito, long a soldier in the Republican holy war to curtail abortion rights, and Thomas, an avowed Roe antagonist, had the will but not the votes to impose their antiabortion vision on the majority of the Supreme Court, much less on the rest of the country. Their fortunes, and power, changed with the election of Donald Trump, whose own marriage of convenience with white evangelicals and social conservatives paved the way for his presidency and the installation of three new justices of a different mold, all of them more extreme and lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible.

Next to this “restless and newly constituted Court,” as Sotomayor branded this new majority in June, Chief Justice John Roberts looks as weakened as ever. The Supreme Court may bear his name, and the chief may have come of age during the abortion wars of the 1980s and ’90s, but neither his title nor institutionalist bent could convince the reactionaries to his right that their ­power grab in Dobbs represented “a serious jolt to the legal system” that he simply could not join in full. Too much, too soon. To the Trump justices, plus Thomas and Alito, this shock to the nation could not come soon enough.

Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that for decades has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan have made the fall of Roe a white whale of their politics.

. . . .

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Read the rest of the article at the link.

Cristian creates an interesting vignette. The Justices take a few minutes to gather to welcome Justice Ketanji Brown Jackson to the Court. Then, the Right Wing Majority goes to work ignoring her views, insuring her marginalization, and pushing a minority agenda drawing into question her very existence as a person under law. 

The conclusion of the article is perhaps most illustrative of the uncertain future of democracy, human rights, equal justice, and indeed basic human decency:

“Women are not without electoral or political power,” wrote without irony the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return.

Quite an achievement for a Court now dominated by those appointed by Presidents whose election (initial or sole) contravened the will of the majority of voters.

“Better Judges for a Better America!” Why not start with your “wholly owned and operated” Immigration Courts, Merrick Garland?

🇺🇸Due Process Forever!

PWS

08-29-22

More from today’s WashPost on the threat to our democracy posed by the anti-democracy, scofflaw GOP and their right wing judges:

William Webster and William Cohen on how today’s MAGA-infested GOP has become a cult of the lawless: https://www.washingtonpost.com/opinions/2022/08/26/mar-a-lago-fbi-attacks-lawless-gop/

E.J. Dionne on how the “off the rails, far right” GOP Supremes’ majority threatens  humanity’s future with their anti-scientific, anti-government, anti-truth far right agenda:  https://www.washingtonpost.com/opinions/2022/08/28/west-virginia-epa-inflation-reduction-act/

Jennifer Rubin on how one distinguished Senior U.S. District Judge, a Clinton appointee, stood up to the GOP’s anti-abortion overreach: https://www.washingtonpost.com/opinions/2022/08/28/federal-judge-pushback-idaho-abortion-ban/

 

DOJ’s IMITATION OF DHS “SERVICE CENTERS” IN VA MIGHT OFFER LITIGANTS A CHANCE AT BETTER LAW!  😎 — Hon. Jeffrey Chase Points Out How DOJ’s Efforts To “Dumb Down” 😩 Immigration Courts & Replace Judicial Decision-Making With “Rote Adjudication” Could Unintentionally Give Individuals A Better Due Process Option!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2022/8/16/the-4th-circuit-on-jurisdiction

Blog Archive Press and Interviews Calendar Contact

The 4th Circuit on Jurisdiction

On June 30, the U.S. Court of Appeals for the Fourth Circuit issued a decision that might not have received the attention it deserved.  The end result of the court’s published decision in Herrera-Alcala v. Garland was to affirm an Immigration Judge’s denial of asylum based on a lack of credibility.1

But before reaching the merits, the court addressed a jurisdictional issue, and that is where our interest lies.  At his removal proceeding, the petitioner was detained at a Louisiana correctional facility, which placed him physically within the territory of the Fifth Circuit.  For some reason, the Administrative Control Court (which is where the administrative record for the case was created and maintained, and where documents were filed by the parties) having jurisdiction over that Louisiana correctional facility was in Fort Snelling, Minnesota, which is physically located within the Eighth Circuit’s jurisdiction.

However, the immigration judge who conducted the hearing remotely by video and rendered the decision was sitting at the Immigration Adjudication Center in Falls Church, Virginia, which is within the geographic jurisdiction of the Fourth Circuit.  So after the BIA dismissed the petitioner’s appeal, his counsel sought review with the Fourth Circuit.  The Department of Justice moved to change venue to the Fifth Circuit, arguing that the petitioner’s location was determinative. And an amicus brief filed by an immigrants’ rights group took the position that venue properly belonged in the Eighth Circuit, where the control court was located.

The Fourth Circuit resolved the question of jurisdiction using the language of the relevant statute.  Since 8 U.S.C. section 1252(b)(2) states that the “petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” the court interpreted that to mean it is the location of the judge that determines jurisdiction.  And as the judge in this case was in Virginia, it found proper jurisdiction to be with the Fourth Circuit.

The decision yields an immediate benefit, as there are presently nineteen Immigration Judges sitting in the two Immigration Adjudication Centers that are located within the Fourth Circuit’s jurisdiction (in Falls Church and Richmond, VA).  Based on the Fourth Circuit’s ruling, any of the thousands of noncitizens whose cases were heard by one of these Virginia-based judges now have the option of seeking judicial review in the Fourth Circuit.

The impact of this becomes apparent when we look at the BIA’s precedent decision in Matter of L-E-A-.2  In that case, the Board held that the respondent’s family constituted a valid particular social group for asylum purposes, but then denied asylum by finding that a nexus had not been established between that family membership and the feared persecution.  In fact, the decision created an unreasonably high standard for nexus in a commonly occurring type of asylum claim.   But the decision contains a footnote recognizing that the Fourth Circuit holds a significantly different view of nexus in such cases, adding that L-E-A- did “not arise in the Fourth Circuit.”3

Although the Board doesn’t go as far as saying so, applying Fourth Circuit case law to the facts of L-E-A-  would have resulted in a grant of asylum.  As I discussed in far greater depth in this blog post in December, the Fourth Circuit has repeatedly reversed the Board on nexus, citing the latter’s error of focusing on why the persecutor targeted the group in question, instead of asking why they targeted the asylum applicant themself.  For example, if the group in question is a family, it doesn’t matter if the persecutor is targeting that family for an unprotected reason such as money, revenge, or self-preservation.  Per the Fourth Circuit, if the asylum seeker themself wouldn’t be targeted if not for their membership in that family, then nexus has been established, regardless of the reason the family is at risk in the first place.4

In addition to its more favorable take on nexus, the Fourth Circuit is also among the handful of circuits to consider verbal death threats to constitute persecution.5  This is  important, because one who has been threatened in those circuits has thus established past persecution, causing burdens of proof regarding future fear and internal relocation to then shift to the government to rebut, and further opening the possibility for humanitarian grants of asylum even where the government meets its burden of rebuttal.6

The Fourth Circuit has also imposed on Immigration Judges a strong obligation under international law to fully develop the record in hearings involving asylum claims, particularly (but not exclusively) where the respondent is pro se, and considers an IJ’s failure to meet this obligation to be “presumptively prejudicial.”7   Any attorney who is representing on appeal an asylum applicant who appeared pro se below where the IJ had been sitting in Virginia might want to review the record to see if the duties imposed by the Fourth Circuit to develop the record, which includes a “broad and robust duty to help pro se asylum seekers articulate their particular social groups,” was satisfied.8

In spite of the above-listed benefits, advocates have identified a potential downside to the ruling in Herrera-Alcala should the Fourth Circuit’s view on jurisdiction be adopted nationwide.  To illustrate this concern, I’ll use a hypothetical example arising in a circuit such as the Fourth with a body of case law favorable to asylum applicants.  Let’s imagine that after briefing and documenting the claim in line with that circuit’s law, the presiding judge in Baltimore is out sick on the day of the merits hearing.  A deserving asylum seeker could have a likely grant of asylum upended if a judge stationed in a jurisdiction with far less favorable case law is enlisted to hear the case by video under EOIR’s “No Dark Courtrooms” policy.9  While the intent behind substituting in a remote judge might be an innocent one, the impact on the asylum seeker of unexpectedly having to overcome a much tougher standard for nexus or a narrower definition of persecution could be devastating, as the Matter of L-E-A- example illustrated.

The Fourth Circuit’s view is presently limited to the Fourth Circuit.  But should it come to be the universal rule, while whether a particular circuit will accept jurisdiction over a petition for review is beyond EOIR’s control, the agency may itself still choose which circuit’s case law its own Immigration Judges should apply in individual cases before the Immigration Courts.  EOIR would do well to look to the example of USCIS, which advises its asylum officers conducting credible fear interviews that where there is disagreement among the circuits as to the proper interpretation of a legal issue, “generally the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard.”10

I mentioned above the Fourth Circuit’s recognition of the duty of Immigration Judges to ensure that the record is fully developed in asylum claims.  Scholars credit that obligation to the legal requirement on nations to implement treaties in good faith.  For example, in discussing the adjudicator’s duty to develop the record in asylum cases, two leading international refugee law scholars explain the duty to implement treaties in good faith as holding states “not simply to ensuring the benefits of the Convention are withhold from persons who are not refugees, but equally to doing whatever is within their ability to ensure recognition of genuine refugees.”11

But shouldn’t that same obligation apply to not only developing the evidence of record, but also to deciding which law to apply when, as in Herrera-Alcala, there is more than one option?  If there is an obligation on our government to do everything in its ability to ensure recognition of genuine refugees, then isn’t that obligation breached where an individual sitting in a geographic area in which the law deems her deserving of asylum is then denied protection because the judge being beamed into that courtroom is sitting in a place with less enlightened precedent?

Copyright Jeffrey S. Chase 2022.  All rights reserved.

Notes:

  1. Herrera-Alcala v. Garland, Nos. 20-1770, 20-2338, ___ F.4th ___ (4th Cir. June 30, 2022).
  2. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017).
  3. Id at 46, n.3.
  4. Perez Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021).
  5. See Sorto-Guzman v. Garland, No. 20-1762, ___ F.4th ___ (4th Cir. Aug. 3, 2022) (restating the court’s repeated holding that “the ‘threat of death’ qualifies as persecution.”); Bedoya v. Barr, 981 F.3d 240, 246 (4th Cir. 2020) (emphasizing that “under our precedent, as we have repeatedly explained, a threat of death qualifies as past persecution”).
  6. 8 C.F.R. §§1208.13(b)(1), 1208.13(b)(3)(ii), and 1208.13(b)(1)(B)(iii); see also Matter of D-I-M-, 24 I&N Dec. 448 (BIA 2008); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).
  7. Arevalo Quintero v. Garland, 998 F.3d 612, 642 (4th Cir. 2021) (italics in original).
  8. Id. at 633.
  9. March 29, 2019 Memo of EOIR Director, “No Dark Courtrooms,” OOD PM 19-11.
  10. USCIS Asylum Division Officer Training Course, Credible Fear of Persecution and Torture Determinations (Feb. 13, 2017), at 17.
  11. James C. Hathaway and Michelle Foster, The Law of Refugee Status (2d Ed.), Cambridge Univ. Press, 2014, at 119.

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a formerImmigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

*******************

At the “Legacy INS,” the acronym for what were then called “Remote Adjudication Centers” was “The RACK” — with good reason! Once upon a time, EOIR went out of the way to emphasize the differences with, and independence from, INS —  it ran “courts” not “adjudication centers,” and it was comprised of “judges” NOT “adjudicators.”

Indeed, I can remember a past (in person) IJ National Conference where a senior DOJ official received a rather chilly reception for referring to the IJs in the room as “highly paid immigration examiners who worked for the AG.”

But, times change, and passage of time does not always bring progress. In many important ways EOIR is going backwards. Over the years, particularly 2017-2021, it probably has become more “politicized, compromised, weaponized, and subservient to immigration enforcement” than it was when it operated within the “Legacy INS.” Now, its bloated hierarchical bureaucracy, unmanageable backlogs, lousy public service, and emphasis on “productivity” and carrying out DOJ policies, looks more and more like DHS — the successor to the agency from which it declared “independence” back in 1983. What an unforgivable mess!

Star Chamber Justice
The “RACK” “processes” another “adjudication.”

Here’s a recent post with my “take” on Herrera-Alcalahttps://immigrationcourtside.com/2022/07/02/⚖%EF%B8%8Fvenue-venue-whos-got-the-venue-the-4th-circuit-herrera-alcala-v-garland/

As a “vet” of thousands of Televideo Hearings during my 13+ years on the bench at Arlington, I can definitively say that they are inferior to in person hearings, for many reasons. But, sometimes bureaucratic attempts to “depersonalize” justice, cut corners, and achieve bureaucratic goals produce unanticipated outcomes!

🇺🇸 Due Process Forever!

PWS

08-28-22

🤯HASTE MAKES WASTE — DEFENDING IT’S WORSE: IJ’s Due Process Errors During 4-Min. Hearing 11 Years Ago Touch Off 4 Years Of Litigation Ending In Another Crushing Rebuke Of Garland’s DOJ By 4th Cir! — As Judge Wayne Iskra said, “This system is broken!”

U.S. v. Fernandez-Sanchez, 4th Cir., 08-25-22, published

https://www.ca4.uscourts.gov/opinions/204061.P.pdf

WYNN, Circuit Judge:

Bonifacio Fernandez Sanchez, a Mexican citizen who migrated to the United States

illegally as a minor in 2006, was deported in 2011 following a four-minute removal hearing. During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing.

In the years since, Fernandez Sanchez has returned to the United States and been deported multiple times. Upon discovering him in the country once again in 2018, the Government opted to arrest and charge him with illegal reentry in violation of 8 U.S.C. § 1326(a). Fernandez Sanchez moved to dismiss his indictment, arguing that the 2011 deportation order underlying his § 1326 charge was invalid.

The district court agreed, finding that the immigration judge’s failure to advise Fernandez Sanchez regarding his eligibility for voluntary departure rendered his 2011 removal fundamentally unfair. However, while this appeal was pending, we effectively rejected the district court’s reasoning in United States v. Herrera-Pagoada, 14 F.4th 311 (4th Cir. 2021). Fernandez Sanchez nevertheless maintains that the district court’s decision must be affirmed on an alternative basis: that the immigration judge’s denial of his right to appeal also prejudiced him. We agree, and therefore affirm the dismissal of Fernandez Sanchez’s indictment.

. . . .

************************

To me, it sounds like the 4th Circuit having “buyer’s remorse” about their questionable decision in United States v. Herrera-Pagoada, There, the court found that an IJ’s erroneous failure to advise a respondent of the availability of pre-hearing voluntary departure (“VD”)  was not a constitutional violation because there was no constitutional right to be advised of potential relief from deportation, even though a DOJ regulation required it! Huh?

But, here the court finds that the IJ’s improper failure to advise of the availability of prehearing VD combined with his failure to advise of appeal rights WAS a due process violation. Why? Because, if properly advised, the individual probably would have appealed, been successful, received a remand from the BIA, and then received VD from the IJ, thus avoiding deportation. Huh? 

The problem here is that as currently staffed and operated by the Executive, EOIR is one “walking, talking violation of due process.” If Congress won’t solve the problem by enacting a long overdue Article I Immigration Court, then the Article IIIs need to “take the bull by the horns!” 

They should place this entire, festering conflict of interest, and hotbed of substandard quasi-judicial performance OUT of the control of the nation’s Chief Prosecutor, the AG. Until Congress acts to establish a constitutionally compliant system, EOIR should be placed under the supervision of an independent, expert “Special Master” qualified to fairly administer one of the nation’s most important, yet totally dysfunctional and highly unfair, court systems!

Interestingly, much of the court’s reasoning is based on the premise that on appeal the BIA would have corrected the IJ’s clear errors. But, as those who follow Federal immigration litigation are aware, the BIA’s “assembly line” appellate review, sensitivity to due process, and willingness to apply precedent favoring the respondent are often as slipshod and driven by undue haste as this 4-minute IJ hearing. 

Ironically, the IJ who mishandled this case is generally regarded as one of the “best in the business” — experienced, knowledgeable, fair, and sensitive to the rights of individuals coming before him. So, while this screw-up might be an aberration for this particular IJ, it’s clearly not a systemic rarity. 

In the haste makes waste, hopelessly backlogged, “anything goes” “world of EOIR” goofs like this are likely happening every hour of every day that the Immigration Courts are in session. But, since many folks are unrepresented or underrepresented, some mistakes are simply buried or deported.

Indeed, I had my share of 4-minute (or less) “hearings” during 13 years on the bench. Inevitably, I made some mistakes — some were caught, some inevitably weren’t. Hopefully, I learned from the ones brought to my attention. With “Master Calendars” often consisting of upwards of 50 cases in a 3-hour “slot” in a courtroom overflowing with humanity — and the need to provide stressed out interpreters court clerks, counsel, and me with suitable “breaks” — you can do the math!

Once I did a 100 case Televideo Master in Ohio where 1) I had no files; 2) the ICE ACC who had been detailed to the hearing location had no files; and 3) the interpreter spoke a language other than the one of the majority of the respondents on the calendar. Afterwards, I told the then Chief IJ that I had spent the day in “Clown Court!’” 🤡 He was not amused.

To quote my friend and former colleague retired Judge Wayne Iskra: “This system is broken!”  “Numbers,” “final orders,” “expediency,” and “productivity” to satisfy bureaucratic enforcement goals or to support Government myths about immigrants drive the EOIR system. Due process, fundamental fairness, compliance with the statute and regulations, and meaningful analysis are not this dysfunctional system’s focus. But, they must be!

Clearly, “dedicated dockets,” regulatory time frames, form orders, remote “Adjudication Centers,” and other “designed to fail” gimmicks tried under Garland are NOT going to solve the chronic quality-control and due process problems plaguing EOIR!

In other words, EOIR as currently constituted and “operated” is a “due process sham!” The 4th Circuit and other Article IIIs need to “dig deeper” into the glaring constitutional and professional quality problems plaguing Garland’s broken Immigration Courts! If neither he nor Congress will solve the problems, somebody must!

🇺🇸 Due Process Forever!

PWS

08-26-22

💨 FROM THE ROCKIES & THE HIGH PLAINS, THE WINDS OF TRUTH BLOW AWAY THE BS & SHOW HOW GARLAND’S BIA & THEIR SCOFFLAW INTERPRETATIONS HAVE BUILT BACKLOGS — “This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in,” says 10th Cir. in Estrada-Corona v. Garland!

Kangaroos
It’s easy guys, we just do what DHS Enforcement and our political bosses want and we can keep hopping around forever! Backlogs! Ha, the bigger the bigger they get, the more “secure” our jobs!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

Estrada-Cardona v. Garland

“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. … Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA’s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart. … [W]e hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the BIA abused its discretion in this case by failing to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” … We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. …  On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA’s application of the final-order rule was legal error. Second, the BIA’s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion. For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.”

[Hats way off to Jennifer M. Smith and Mark Barr!]

********************

“For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens, the only obstacle to being eligible for cancellation of removal was the Government’s position that a time-and-place-to-be-set notice to appear still triggers the stop-time rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation and held a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop, the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation of removal.

But the Government quickly erected a new hurdle.”

The BIA could and should have prevented this debacle by insisting from the git go that the statute (“the law”) be followed by DHS and EOIR. Instead, at the behest of DHS, and perhaps to prevent tens of thousands of long-term residents who had received statutorily defective notices from seeking relief, the BIA misinterpreted the statute time after time. 

The real stupidity here is that the requirement the BIA was pretzeling itself to avoid was hardly “rocket science” or burdensome: Serve a notice containing the actual date, time, and place of the hearing! One might ask what purpose is served by a so-called “Notice to Appear” that doesn’t notify the individual of where and when to appear?

Moreover, when the BIA started issuing their incorrect precedents, DHS and EOIR had a then-existing system — called “interactive scheduling” — that would have complied with the statute. The problem was that the “powers that be” at DOJ, EOIR, and DHS consciously decided NOT to use that system. 

The apparent reason was the belief that complying with the law might have interfered with DHS arbitrarily filling the Immigration Courts with large “numbers” of cases to meet various enforcement “priorities” set from “on high.” Rather than doing its job, the BIA chose time and again to “go along to get along” with this nonsense!

Over and over, EOIR lets bogus DHS or Administration “enforcement priorities” or “improperly using the legal system as a deterrent” subvert due process, fundamental fairness, best interpretations, and practical solutions!

And, although Biden and Harris campaigned on a platform of bringing the rule of law and rationality back to immigration, the absurdity and illegality continues under Garland. He even sent OIL in to waste the time of the Article IIIs by mounting essentially frivolous defenses to the BIA’s malfeasance. 

Perhaps worst of all, in addition to being denied timely justice, individuals and their lawyers dealing with Garland’s dysfunctional EOIR often are falsely blamed for causing the backlogs that are the primary result of DHS/EOIR incompetence and political meddling by unqualified bureaucrats. The latter don’t understand what really happens in Immigration Court and how to properly, fairly, and efficiently administer such a large and important court system.

The backlogs will continue to grow and the US justice system will crater because of bad immigration decisions generating skyrocketing litigation. Garland must replace the BIA with real expert appellate judges committed to fair, humane, and reasonable interpretations of immigration and human rights laws — without regard to whether those correct interpretations will be “career enhancing” or “career preserving.” In other words, judges who put justice before personal or institutional “survival.” Competent, expert, independent-minded judicial administrators with the guts to keep DOJ and DHS bureaucratic meddlers “at arm’s length” are also required.

Folks who could do the job are out here. But, that’s the problem! They belong in the key judicial judicial and administrative positions at EOIR where they can put any end to the due-process denying, backlog building dysfunction.

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Everyone committed to the future of American justice should be asking themselves why Garland hasn’t recruited and hired the right “Team Due Process” for EOIR! American justice can’t afford more of Garland’s inept, “go along to get along,” “afraid to say no to DHS enforcement” BIA and the rest of the EOIR “Deadly Clown Show” largely left over from past, failed Administrations!

🇺🇸 Due Process Forever!

PWS

08-20-21

⚖️ NDPA STALWART MICHAEL MEHR BEATS DOWN MATTER OF CORDERO-GARCIA (Obstruction of Justice) IN 9TH — Dissenting Trump Judge VanDyke Goes Ballistic — Accuses Colleagues Of “Playing Dirty” By Occasionally Ruling In Favor Of Individuals In Immigration Cases!

 

Here’s a report from Nate Raymond @ Reuters:

https://www.reuters.com/legal/government/trump-appointed-judge-says-9th-circuit-playing-dirty-prevent-deportations-2022-08-15/

(Reuters) – A conservative judge appointed by former President Donald Trump on Monday accused his colleagues on the 9th U.S. Circuit Court of Appeals of playing “dirty” in a “trainwreck” of rulings to prevent immigrants from being deported.

U.S. Circuit Judge Lawrence VanDyke’s criticism came in a dissent to a 2-1 decision holding a Mexican native’s California conviction for dissuading a witness from reporting a crime was not a deportable offense under federal immigration law.

VanDyke, who has become known for a string of dissents since joining the liberal-leaning court in 2020, noted he had not been shy in criticizing the San Francisco-based court’s “abysmal and indefensible immigration precedents.”

He said the 9th Circuit for more than a decade has been “doing everything in our power (and much not) to upset” the Board of Immigration Appeals’ “reasonable” interpretation of what constitutes an offense related to obstruction of justice.

The BIA in this case had concluded Fernando Cordero-Garcia committed such an offense after he was convicted in California of sexual battery without restraint, sexual exploitation by a psychotherapist and dissuading a witness from reporting a crime.

“My colleagues in the majority should be embarrassed,” VanDyke wrote. “Perhaps not for their wrong decision today–to err is human, after all, even for those in robes. But they should be troubled by our court’s jaw-dropping, always-increasing, epic collection of immigration gaffes.”Cordero-Garcia’s lawyer, Michael Mehr, declined to comment.

Cordero-Garcia, who entered the country in 1965 as a lawful permanent resident, was a psychologist for the County of Santa Barbara Alcohol, Drug and Mental Health Services department who prosecutors said sexually assaulted patients, the ruling said.

Two appointees of Democratic presidents — U.S. District Judge Barry Moskowitz, a visiting judge on the court, and U.S. Circuit Judge Andrew Hurwitz — ruled for Cordero-Garcia in overturning the BIA’s decision on the obstruction offense.

Moskowitz, writing for the majority, said he was not writing on a “clean slate,” as the 9th Circuit in 2020 ruled an “obstruction of justice” offense must be connected to ongoing or pending criminal proceedings.

The California law Cordero-Garcia was convicted under, by contrast, does not require any connection to an ongoing or pending proceeding or investigation, making it “not an appropriate comparator” to obstruction under federal law.

VanDyke, though, said the 9th Circuit’s approach had created a “lopsided circuit-split,” with the majority acknowledging its ruling ran counter to decisions by the 1st and 4th U.S. Circuit Courts of Appeals.

The case is Cordero-Garcia v. Garland, 9th U.S. Circuit Court of Appeals, No. 19-72779.

For Cordero-Garcia: Michael Mehr of Mehr & Soto

For the United States: Rebecca Hoffberg Phillips of the U.S. Department of Justice

Read more:

Trump-appointed judge blasts 9th Circuit’s ’embarrassing’ immigration rulings

In barbed dissents, Trump appointees call

**************************

Here’s a link to Matter of Garcia-Cordero, 27 I&N Dec. 652 (BIA 2019) which was reversed by the 9th Circuit:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwip-puUns75AhUlk4kEHaQXAisQFnoECAMQAw&url=https%3A%2F%2Fwww.justice.gov%2Feoir%2Fpage%2Ffile%2F1210991%2Fdownload&usg=AOvVaw2IVnTOUmhzqK0ppatf4rr7

While VanDyke has been eager to rip into his colleagues for critically reviewing BIA rulings, rather than just “rubber stamp deferring,” he is no stranger to controversy. He received the coveted “not qualified to serve” rating from the ABA and has been characterized as an “unqualified hack” by Joe Patrice over at abovethelaw.com.  https://abovethelaw.com/2021/12/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents/.

Interestingly, a chunk of the dissent is dedicated to showing that Mr. Cordero-Garcia is a louse. However, that doesn’t seem to have much to do with the legal application of the “categorical test” to his crime in the immigration context. For all its difficulties, Congress was well aware that courts had historically applied the “categorical test” as opposed to the “sounds like a bad guy” approach when they enacted the statutory language in question.

Curiously, VanDyke castigates his majority colleagues for “result oriented” decision making. But it seems highly unlikely that either District Judge Barry Ted Moskowitz, who wrote the opinion, or Circuit Judge Andrew Hurwitz would have chosen Mr. Cordero-Garcia’s situation as one to “throw out a lifeline.”

What’s more likely is that they fairly applied controlling Circuit precedent notwithstanding the highly unsympathetic individual involved. By contrast, critics have characterized VanDyke as an ideologue — driven by a far-right agenda — whose main focus on the bench has been “writing vitriolic Town Hall editorials to publish in F.4th.” Id.

From a due process standpoint, one of the most severe problems undermining our entire justice system today is the disturbingly poor performance of the BIA which often functions as a “rubber stamp” on incorrect anti-immigrant decisions by Immigration Judges, many of them appointed during the Trump Administration with questionable credentials, at best. That’s when the BIA isn’t busy serving as a “shill” for DHS Enforcement — often bending the law or going out of their way to sustain ICE appeals from correct decisions below that grant relief or benefit individuals. BIA precedents favorable to asylum seekers and other migrants are few and far between — despite an obvious lack of immigration and human rights expertise among many Trump appointees to the immigration bench.

The problem is compounded when reviewing Circuit Courts ignore the glaring Constitutional conflict of having a “court” that is “owned” by an enforcement agency (and was blatantly “weaponized” against migrants by Sessions and Barr) and the poor quality decision making, lack of scholarship, and overt bias that plagues EOIR. “Rubber stamp deference” to BIA decisions that do not deserve it is a systemic problem for the Article IIIs, actively encouraged by the Supremes judge-created Chevron and Brand X doctrines of undue deference. From this perspective, VanDyke and many (not all) of his Trump colleagues are a big part of the problem — not the solution!

Michael K. Mehr
Michael K. Mehr ESQ!
Senior Partner
Mehr & Soto LLP
Santa Cruz, CA
PHOTO: Website

Many congrats to Michael Mehr for vigorously and successfully litigating this complex issue in the 9th Circuit. It’s telling to compare the “quiet competence” of dedicated, expert advocates like Mehr with the “bombastic grandstanding” of VanDyke and others in the xenophobic right. Mehr and others in the NDPA have honed their their advocacy and scholarship skills by decades of giving a “voice” to those who otherwise are seldom “heard” by the powers that be.

Undoubtedly, given the circuit split, this eventually will end up at the Supremes. There, VanDyke’s fellow Trump appointees could well agree with him. But, that might be more reflective of problems with the composition of today’s Supremes than with the law. Stay tuned!

🇺🇸Due Process Forever!

PWS

08-17-22

🔌👎🏽GARLAND MUST “PULL THE PLUG” ON HIS FAILED APPELLATE COURT — BIA “DEFIES” EVIDENCE TO MOCK DUE PROCESS & DENY ASYLUM, SAYS 3RD CIR! — OGEE v. AG (Ghana)

Kangaroos
What kind of “judges” would “defy” the evidence of record to wrongfully deny asylum?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Read the 3rd Circuit’s (unfortunately) unpublished decision here:

https://www2.ca3.uscourts.gov/opinarch/202423np.pdf

Key quote:

The IJ credited Bimpong’s testimony, and the BIA did not disturb this finding. Yet the BIA concluded that Bimpong’s persecution was a personal land dispute that lacked any nexus to his membership in the Ashanti tribe. In doing so, the BIA deferred to the IJ’s conclusion that “the record is devoid of any evidence indicating that the [Enzema] Tribe targeted the applicant because of membership in the Ashanti Tribe.” AR 97 (emphasis added). That conclusion defies the record, which is replete with evidence that Bimpong’s tribal affiliation was a central reason for his persecution. See, e.g., AR 157, 162-63, 167–68, 185, 596, 598. For example, Bimpong testified that members of

the Enzema “did not want the land that [he] possessed to be owned by non-members of 4

the Enzema tribe,” AR 596, and that he “was a target of persecution because of [an] intertribal dispute between the Enzema tribe and Ashanti tribe.” AR 598.

****************

Typical BIA BS prejudged, form denial “boilerplate.” “Devoid of evidence” — gimmie a break! We tried (obviously unsuccessfully) to eliminate this type of non-analytical nonsense several decades ago. It’s indicative of a totally broken system that is unfair and biased against migrants! Why is Garland allowing this continuing systemic injustice?

Demand that Garland replace his inept, unprofessional, unconstitutional, “Trump holdover” BIA with real judges who are experts in immigration, asylum, human rights, and fully committed to due process and fundamental fairness! 

To quote my good friend and Round Table 🛡 colleague, Hon. “Sir Jeffrey” Chase:

At the IJ level, the ACIJs have to be charged with determining if the IJ actually doesn’t know the law, or if they are choosing not to follow it.  Of course, you need ACIJs who actually know immigration law, which isn’t always the case anymore.  If it’s the former, you schedule additional training; if it’s the latter, they may need to suspend or remove the IJ.  That should be a priority for the next Chief IJ.

But why isn’t this being caught at the BIA level?  They continue to act as a rubber stamp.  There have been a few cases just in the past couple of weeks where the errors were really major and apparent.
A BIA that would “rubber stamp” denials without question or meaningful analysis so that OIL could then argue “deference” to railroad refugees and other individuals entitled to relief out of the country is precisely what Barr and Sessions intended to create. In other words, a “parody of justice” that would carry out the White Nationalist restrictionist agenda without giving it any thought. And, it’s no coincidence that this unconstitutional agenda falls hardest on the backs of  asylum seekers and other migrants of color. It also serves to reinforce the vile concept that individuals of color in the U.S. are not equal under the law.
The real question here is why Garland hasn’t effectively changed the system by bringing in real judges who are experts in immigration and human rights and who would be fair to all coming before his Immigration Courts regardless of race or status? “Gradual change” is unacceptable when individuals (and their conscientious representatives) are being subjected to deadly quasi-judicial incompetence on a daily basis. Tell Garland you’ve had enough!  
EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸 Due Process Forever!

PWS

08-16-22

⚖️NDPA SUPERSTAR BEN WIN-OGRAD WINS A BIGGIE IN 4TH ON IJ CONDUCT — Tinoco Acevedo v. Garland

Ben Winograd
Ben Winograd, Esquire
Immigrant & Refugee Appellate Center
Falls Church, VA

Dan Kowalski reports for LexisNexis Immigration Community!

CA4 on IJ Conduct: Tinoco Acevedo v. Garland

Tinoco Acevedo v. Garland

“Petitioner Rodolfo Josue Tinoco Acevedo appeals an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of removal. Because the BIA failed to address whether Tinoco Acevedo’s case should be remanded to a new immigration judge (“IJ”) under Matter of Y-S-L-C-, 26 I. & N. Dec. 688 (BIA 2015), we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion. … Rather than opine as to the exact grounds on which the BIA decided that the applicant was entitled to a new hearing before a new IJ in Matter of Y-S-L-C-, we remand for the BIA to interpret its precedent and address Tinoco Acevedo’s argument in the first instance. …  we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand for the BIA to consider whether Tinoco Acevedo is entitled to a new hearing before a different IJ because the initial IJ’s conduct—both during and following the hearing—failed to satisfy the high standard expected of IJs under Matter of Y-S-L-C-. PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.”  [Note: The IJ was Roxanne C. Hladylowycz.]

[Hats off once again to IRAC superlitigator Ben Winograd!]

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Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Yet another example of the BIA not being familiar with and applying their own precedents where they could be favorable to the respondent. Any old boilerplate BS will do as long is the result is “dismiss and remove.”

It’s one thing for the BIA to articulate “high standards” for IJ conduct in Matter of Y-S-L-C-. It’s quite another to consistently enforce them where the lives of migrants are at stake!

It was a particularly bad idea for the BIA to spring this haphazard “good enough for government work” approach when Ben Winograd is appellate counsel. Winograd knows the BIA and 4th Circuit precedents better than most BIA judges. And, unlike the latter, he’s willing to stand up for immigrants’ legal rights!

It would be better for Garland and American justice — not to mention those seeking justice in Immigration Court, too often in vain — if brilliant, due-process-oriented “practical scholars” like Ben Winograd replaced the “holdover BIA judges” who aren’t up to the job of “guaranteeing fairness and due process for all.” Remarkably, there was a time in the past when that long disregarded judicial essential was the “vision” of EOIR.

Ironically, the Article III Judges of this 4th Circuit panel (Chief Judge Gregory, Circuit Judges Motz and Wynn) understand the critical requirements for EOIR judging better than AG Garland! That’s a problem (although, concededly, outside the “World of EOIR” Garland has had his best week as AG)!

This opinion was written by Chief Judge Roger Gregory. He continues to be a leader among Article III Judges who take due process and immigrants’ rights seriously! He’s also someone who “gets” the clear connection between immigrant justice (or, in too many cases lack thereof) and racial justice.

With the Chief Immigration Judge position now vacant, Judge Garland has a golden opportunity to appoint a “Judge Gregory clone” to that critical  position. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=30193&action=edit. That would also be a wise course for Garland to take to replace the current glaringly inadequate leadership at his failing BIA! How about Chief Appellate Immigration Judge/Chairman Ben Winograd?

🇺🇸 Due Process Forever!

PWS

08-13-22

DAN KOWALSKI: “YOU CAN’T MAKE THIS STUFF UP!” — All Three Branches Combine To Produce Absurdity!🤯

Twilight Zone
CAUTION: You are about to enter the “Mayorkas-Garland Twilight Zone!”
The Twilight Zone Billy Mumy 1961.jpg
:PHOTO: Public Realm

Check out this US Magistrate Judge’s recommended decision from Houston in Desai v. Mayorkas:

Desai 31 7-26-22

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There used to be a saying at the”Legacy INS:” “Truth is stranger than fiction, and INS is stranger than truth!”

It’s symbolic of the dysfunction in our immigration system that nobody with some common sense at either DHS or DOJ has stepped up to resolve this nonsense! Can’t anyone in Government solve a problem these days?

I inherited a few of these “forever” cases during my career on the bench. For the most part, with the help of cooperative lawyers on both sides, we were able to “make them go away” without stomping on anyone’s rights.

🇺🇸Due Process Forever!

PWS

08-07-22

🏴‍☠️🤮👎🏽 WHAT’S GARLAND DOING? — LATEST 4TH CIR. REJECTION OF ABSURDIST EOIR ASYLUM DENIAL SHOWS WHY GARLAND MUST “PULL THE PLUG” 🔌 ON THE BIA! — While He’s At It, He Needs To Look At OIL’s Mindless “Defense Of The Clearly Indefensible!” — Why Are American Women Giving Garland A “Free Pass” On Overt, Institutionalized, Racially-Charged, Misogyny @ His DOJ?

Doctor Death
Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA!
Public Domain

https://www.ca4.uscourts.gov/opinions/201762.P.pdf

Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published

PANEL:  KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.

OPINION: Judge FLOYD

KEY QUOTE:

In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would

2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.

 11

have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).

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Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
3

On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.

Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!

Trial By Ordeal
Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution!
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

NOT, a “mere mistake.”

EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.

Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?

If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!

Alfred E. Neumann
“What are legal ethics?  Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers!  So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!

Woman Tortured
“She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

🇺🇸 Due Process Forever!

PWS

08-04-22